81 FR 60649 - Filing of Complaints of Prohibited Personnel Practices or Other Prohibited Activities and Filing Disclosures of Information

OFFICE OF SPECIAL COUNSEL

Federal Register Volume 81, Issue 171 (September 2, 2016)

The U.S. Office of Special Counsel (OSC) proposes to revise its regulations regarding the filing of complaints and disclosures with OSC, and also to update the prohibited personnel practice provisions. In accordance with the Paperwork Reduction Act of 1995, and implementing Office of Management and Budget (OMB) regulations, OSC has also requested approval from OMB for a new, dynamic electronic form to be used for filing complaints and disclosures. This new form will replace Forms OSC-11, OSC-12, and OSC-13, which were previously approved by OMB. Access to the new electronic form relevant to this proposed rule has been submitted to the OMB for review.

[Federal Register Volume 81, Number 171 (Friday, September 2, 2016)]
[Proposed Rules]
[Pages 60649-60651]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-20527]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 81, No. 171 / Friday, September 2, 2016 / 
Proposed Rules

[[Page 60649]]



OFFICE OF SPECIAL COUNSEL

5 CFR Part 1800


Filing of Complaints of Prohibited Personnel Practices or Other 
Prohibited Activities and Filing Disclosures of Information

AGENCY: U.S. Office of Special Counsel.

ACTION: Notice of proposed rulemaking and related information 
collection activity.

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SUMMARY: The U.S. Office of Special Counsel (OSC) proposes to revise 
its regulations regarding the filing of complaints and disclosures with 
OSC, and also to update the prohibited personnel practice provisions. 
In accordance with the Paperwork Reduction Act of 1995, and 
implementing Office of Management and Budget (OMB) regulations, OSC has 
also requested approval from OMB for a new, dynamic electronic form to 
be used for filing complaints and disclosures. This new form will 
replace Forms OSC-11, OSC-12, and OSC-13, which were previously 
approved by OMB. Access to the new electronic form relevant to this 
proposed rule has been submitted to the OMB for review.

DATES: Written comments must be received by November 1, 2016. Note, 
however, that OMB is required to act on the collection of information 
discussed in this proposed rule between 30 and 60 days after this 
notice's publication in the Federal Register. Therefore, comments are 
best assured of having full effect if received by OMB within 30 days of 
this notice's publication in the Federal Register.

ADDRESSES: You may submit comments by any of methods listed below. 
Comments received may be posted to http://www.regulations.gov.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments;
     Office of Information and Regulatory Affairs, Office of 
Management and Budget, by email via: [email protected]; or 
to
     Office of Information and Regulatory Affairs, Office of 
Management and Budget, Attention: Desk Officer for OSC, New Executive 
Office Building, Room 10235, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Kenneth Hendricks, Associate General 
Counsel, U.S. Office of Special Counsel, by telephone at 202-254-3600, 
by facsimile at (202) 254-3711, or by email at [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The proposed rule makes minor changes to the existing language in 5 
CFR 1800.1(c)(1) through (5) and (d), and 1800.2(b)(1) and (2) by 
replacing references to, and information about, the old OSC forms with 
references to, and information about, forms established by OSC. The 
language in the proposed rule refers to forms established by OSC, and 
it covers the new form that OSC submitted to OMB for approval. The 
proposed rule will enable us to revise our forms in the future, while 
still providing for public notice and OMB's review of future revisions. 
The proposed rule also updates the prohibited personnel practice 
provisions, at 5 CFR 1800.1(a)(13), based on the requirements of 5 
U.S.C. 2302(b)(13) regarding nondisclosure forms, policies, or 
agreements. Comments are invited on the proposed rule and the new form.
    OSC is an independent agency responsible for, among other things, 
(1) investigation of allegations of prohibited personnel practices 
defined by law at 5 U.S.C. 2302(b), protection of whistleblowers, and 
certain other illegal employment practices under titles 5 and 38 of the 
U.S. Code, affecting current or former Federal employees or applicants 
for employment, and covered state and local government employees; and 
(2) the interpretation and enforcement of Hatch Act provisions on 
political activity in chapters 15 and 73 of title 5 of the U.S. Code.

Procedural Determinations

    Administrative Procedure Act (APA): This action is taken under the 
Special Counsel's authority at 5 U.S.C. 1212(e) to publish regulations 
in the Federal Register.
    Executive Order 12866 (Regulatory Planning and Review): OSC does 
not anticipate that this proposed rule will have significant economic 
impact, raise novel issues, and/or have any other significant impacts. 
Thus this proposed rule is not a significant regulatory action under 
3(f) of Executive Order 12866 and does not require an assessment of 
potential costs and benefits under 6(a)(3) of the Order.
    Congressional Review Act (CRA): OSC has determined that this 
proposed rule is not a major rule under the Congressional Review Act, 
as it is unlikely to result in an annual effect on the economy of $100 
million or more; is unlikely to result in a major increase in costs or 
prices for consumers, individual industries, federal, state, or local 
government agencies or geographic regions; and is unlikely to have a 
significant adverse effect on competition, employment, investment, 
productivity, or innovation, or on the ability of U.S.-based 
enterprises to compete in domestic and export markets.
    Regulatory Flexibility Act (RFA): The Regulatory Flexibility Act 
does not apply, even though this proposed rule is being offered for 
notice and comment procedures under the APA. This proposed rule will 
not directly regulate small entities. OSC therefore need not perform a 
regulatory flexibility analysis of small entity impacts.
    Unfunded Mandates Reform Act (UMRA): This proposed revision does 
not impose any federal mandates on state, local, or tribal governments, 
or on the private sector within the meaning of the UMRA.
    National Environmental Policy Act (NEPA): This proposed rule will 
have no physical impact upon the environment and therefore will not 
require any further review under NEPA.
    Paperwork Reduction Act (PRA): As noted above, OSC is submitting 
this proposed rule and collection to OMB for review pursuant to the 
Paperwork Reduction Act, 44 U.S.C. 3501, et seq. Comments are invited 
on: (a) Whether the proposed collection of information is necessary for 
the proper performance of OSC functions, including whether the 
information will have practical utility; (b) the accuracy of OSC's 
estimate of the burden of the proposed collection of information; (c) 
ways to enhance the quality, utility, and clarity of the information to 
be collected; and (d) ways to minimize the burden of the collection of 
information on

[[Page 60650]]

respondents, including through the use of automated collection 
techniques or other forms of information technology. The new form can 
be reviewed at https://dev.osc.gov/pages/osctest.aspx.
    Title of Collection: Form 14: Electronic Submission of Allegations 
and Disclosures Access to the new electronic form is available at: 
https://dev.osc.gov/pages/osctest.aspx.
    Type of Information Collection Request: Approval of new collection 
of information to replace previously-approved collection of 
information.
    Affected Public: Current and former Federal employees, applicants 
for Federal employment, state and local government employees, and their 
representatives, and the general public.
    Respondent's Obligation: Voluntary.
    Estimated Annual Number of Form OSC-14 Respondents: 6000 (estimated 
prohibited personnel practice filers = 4000; estimated disclosure 
filers = 1835; and estimated Hatch Act filers = 165). These estimates 
are based on a review of recent Annual Reports and an analysis of 
developing trends for this year.
    Frequency of Use of Form OSC-14: Daily.
    Estimated Average Amount of Time for a Person To Respond Using Form 
OSC-14: For prohibited personnel practice allegations, one hour and 15 
minutes; for whistleblower disclosures, one hour; and for Hatch Act 
allegations, 30 minutes to complete the form in each of the years 
covered by this request. These estimates are based on testing completed 
by OSC employees during the development of the collection form.
    Estimated Annual Burden for Filing Form OSC-14: 6917.5 hours.
    Abstract: The electronic form will be used by current and former 
Federal employees and applicants for Federal employment to submit 
allegations of possible prohibited personnel practices or other 
prohibited activity for investigation and possible prosecution by OSC, 
or review and possible referral to relevant Inspector General offices.
    Executive Order 13132 (Federalism): This proposed revision does not 
have new federalism implications under Executive Order 13132.
    Executive Order 12988 (Civil Justice Reform): This proposed rule 
meets applicable standards of 3(a) and 3(b)(2) of Executive Order 
12988.

List of Subjects in 5 CFR Part 1800

    Filing of complaints and allegations.

    For the reasons stated in the preamble, OSC proposes to revise 5 
CFR part 1800 as follows:

PART 1800--FILING OF COMPLAINTS AND ALLEGATIONS

0
1. The authority citation for 5 CFR part 1800 continues to read as 
follows:

    Authority: 5 U.S.C. 1212(e).

0
2. Section 1800.1 is revised to read as follows:


Sec.  1800.1   Filing complaints of prohibited personnel practices or 
other prohibited activities.

    (a) Prohibited personnel practices. The Office of Special Counsel 
(OSC) has investigative jurisdiction over the following prohibited 
personnel practices committed against current or former Federal 
employees and applicants for Federal employment:
    (1) Discrimination, including discrimination based on marital 
status or political affiliation (see Sec.  1810.1 of this chapter for 
information about OSC's deferral policy);
    (2) Soliciting or considering improper recommendations or 
statements about individuals requesting, or under consideration for, 
personnel actions;
    (3) Coercing political activity, or engaging in reprisal for 
refusal to engage in political activity;
    (4) Deceiving or obstructing anyone with respect to competition for 
employment;
    (5) Influencing anyone to withdraw from competition to improve or 
injure the employment prospects of another;
    (6) Granting an unauthorized preference or advantage to improve or 
injure the employment prospects of another;
    (7) Nepotism;
    (8) Reprisal for whistleblowing (whistleblowing is generally 
defined as the disclosure of information about a Federal agency by an 
employee or applicant who reasonably believes that the information 
shows a violation of any law, rule, or regulation; gross mismanagement; 
gross waste of funds; abuse of authority; or a substantial and specific 
danger to public health or safety);
    (9) Reprisal for:
    (i) Exercising certain appeal rights;
    (ii) Providing testimony or other assistance to persons exercising 
appeal rights;
    (iii) Cooperating with the Special Counsel or an Inspector General; 
or
    (iv) Refusing to obey an order that would require the violation of 
law;
    (10) Discrimination based on personal conduct not adverse to job 
performance;
    (11) Violation of a veterans' preference requirement;
    (12) Taking or failing to take a personnel action in violation of 
any law, rule, or regulation implementing or directly concerning merit 
system principles at 5 U.S.C. 2301(b); and
    (13) Implementing or enforcing nondisclosure policies, forms, or 
agreements that do not contain the statement required by 5 U.S.C. 
2302(b)(13).
    (b) Other prohibited activities. OSC also has investigative 
jurisdiction over allegations of the following prohibited activities:
    (1) Violation of the Federal Hatch Act at title 5 of the U.S. Code, 
chapter 73, subchapter III;
    (2) Violation of the state and local Hatch Act at title 5 of the 
U.S. Code, chapter 15;
    (3) Arbitrary and capricious withholding of information prohibited 
under the Freedom of Information Act at 5 U.S.C. 552 (except for 
certain foreign and counterintelligence information);
    (4) Activities prohibited by any civil service law, rule, or 
regulation, including any activity relating to political intrusion in 
personnel decision making;
    (5) Involvement by any employee in any prohibited discrimination 
found by any court or appropriate administrative authority to have 
occurred in the course of any personnel action (unless the Special 
Counsel determines that the allegation may be resolved more 
appropriately under an administrative appeals procedure); and
    (6) Violation of uniformed services employment and reemployment 
rights under 38 U.S.C. 4301, et seq.
    (c) Procedures for filing complaints alleging prohibited personnel 
practices or other prohibited activities (other than the Hatch Act). 
(1) Current or former Federal employees, and applicants for Federal 
employment, may file a complaint with OSC alleging one or more 
prohibited personnel practices, or other prohibited activities within 
OSC's investigative jurisdiction. The Form established by OSC must be 
used to file all such complaints (except those limited to an allegation 
or allegations of a Hatch Act violation--see paragraph (d) of this 
section for information on filing Hatch Act complaints).
    (2) Forms filed in connection with allegations of reprisal for 
whistleblowing must identify:
    (i) Each disclosure involved;
    (ii) The date of each disclosure;
    (iii) The person to whom each disclosure was made; and
    (iv) The type and date of any personnel action that occurred 
because of each disclosure.
    (3) Except for complaints limited to alleged violation(s) of the 
Hatch Act, OSC will not process a complaint filed

[[Page 60651]]

in any format other than a completed OSC Form. If a filer does not use 
the OSC Form to submit a complaint, OSC will provide the filer with 
information about the Form. The complaint will be considered to be 
filed on the date on which OSC receives a completed Form.
    (4) The OSC Form is available:
    (i) Online, at: http://www.osc.gov (to complete online);
    (ii) By calling OSC, at: (800) 872-9855 (toll-free), or (202) 653-
7188 (in the Washington, DC area); or
    (iii) By writing to OSC, at: U.S. Office of Special Counsel, 
Complaints Examining Unit, 1730 M Street NW., Suite 218, Washington, DC 
20036-4505.
    (5) A complainant can file a completed Form with OSC by any of the 
following methods:
    (i) Electronically, at: http://www.osc.gov (for completion and 
filing electronically);
    (ii) By fax, to: (202) 653-5151; or
    (iii) By mail, to: U.S. Office of Special Counsel, Complaints 
Examining Unit, 1730 M Street NW., Suite 218, Washington, DC 20036-
4505.
    (d) Procedures for filing complaints alleging violation of the 
Hatch Act. (1) Complaints alleging a violation of the Hatch Act may be 
submitted in any written form, but use of the Form established by OSC 
is encouraged. Complaints should include:
    (i) The complainant's name, mailing address, telephone number, and 
a time when OSC can contact that person about his or her complaint 
(unless the matter is submitted anonymously);
    (ii) The department or agency, location, and organizational unit 
complained of; and
    (iii) A concise description of the actions complained about, names 
and positions of employees who took the actions, if known to the 
complainant, and dates of the actions, preferably in chronological 
order, together with any documentary evidence that the complainant can 
provide.
    (2) The OSC Form for filing a complaint is available as described 
in paragraphs (c)(4)(i) through (iii) of this section.
    (3) A written Hatch Act complaint can be filed with OSC by any of 
the methods listed in paragraphs (c)(5)(i) through (iii) of this 
section.
0
3. Section 1800.2 is revised to read as follows:


Sec.  1800.2   Filing disclosures of information.

    (a) General. OSC is authorized by law (at 5 U.S.C. 1213) to provide 
an independent and secure channel for use by current or former Federal 
employees and applicants for Federal employment in disclosing 
information that they reasonably believe shows wrongdoing by a Federal 
agency. OSC must determine whether there is a substantial likelihood 
that the information discloses a violation of any law, rule, or 
regulation; gross mismanagement; gross waste of funds; abuse of 
authority; or a substantial and specific danger to public health or 
safety. If it does, the law requires OSC to refer the information to 
the agency head involved for investigation and a written report on the 
findings to the Special Counsel. The law does not authorize OSC to 
investigate the subject of a disclosure.
    (b) Procedures for filing disclosures. Current or former Federal 
employees, and applicants for Federal employment, may file a disclosure 
of the type of information described in paragraph (a) of this section 
with OSC. Such disclosures must be filed in writing (including 
electronically--see paragraph (b)(3)(i) of this section).
    (1) Filers are encouraged to use the Form established by OSC to 
file a disclosure of the type of information described in paragraph (a) 
of this section with OSC. The Form provides more information about OSC 
jurisdiction, and procedures for processing whistleblower disclosures. 
The Form is available:
    (i) Online, at: http://www.osc.gov (to complete online);
    (ii) By calling OSC, at: (800) 572-2249 (toll-free), or (202) 653-
9125 (in the Washington, DC area); or
    (iii) By writing to OSC, at: U.S. Office of Special Counsel, 
Disclosure Unit, 1730 M Street NW., Suite 218, Washington, DC 20036-
4505.
    (2) Filers may use another written format to submit a disclosure to 
OSC, but the submission should include:
    (i) The name, mailing address, and telephone number(s) of the 
person(s) making the disclosure(s), and a time when OSC can contact 
that person about his or her disclosure;
    (ii) The department or agency, location and organizational unit 
complained of; and
    (iii) A statement as to whether the filer consents to disclosure of 
his or her identity by OSC to the agency involved, in connection with 
any OSC referral to that agency.
    (3) A disclosure can be filed in writing with OSC by any of the 
following methods:
    (i) Electronically, at: http://www.osc.gov (for completion and 
filing electronically);
    (ii) By fax, to: (202) 653-5151; or
    (iii) By mail, to: U.S. Office of Special Counsel, Disclosure Unit, 
1730 M Street NW., Suite 218, Washington, DC 20036-4505.

    Dated: August 22, 2016.
Mark Cohen,
Principal Deputy Special Counsel.
[FR Doc. 2016-20527 Filed 9-1-16; 8:45 am]
 BILLING CODE 7405-01-P